June 23, 2016

Sabine Moreau lives in Solre-sur-Sambre, a town in Belgium located 38 miles south of Brussels. One day she set out in her car to pick up a friend at the Brussels train station, a trip that should have taken under an hour. She programmed her GPS and headed off. Although the GPS sent her south, not north, she apparently thought nothing of it. She dutifully stayed on the prescribed course. Nor was she deterred when she saw road signs in German for Cologne, Aachen, and Frankfurt. “I asked myself no questions,” she later recounted. “I kept my foot down.” [OMITTED: A footnote citing news coverage like this.]

Hours passed. After crossing through Germany, she entered Austria. Twice she stopped to refuel her car. She was involved in a minor traffic accident. When she tired,she pulled over and slept in her car. She crossed the Alps, drove through Slovenia, entered Croatia, and finally arrived in Zagreb—two days and 900 miles after leaving her home. Either she had not properly set her GPS or the device had malfunctioned. But Ms. Moreau apparently refused to entertain that thought until she arrived in the Croatian capital. Only then, she told reporters, did she realize that she had gone off course, and she called home, where the police were investigating her disappearance.

Twenty-six years ago, in Taylor v. United States, 495 U. S. 575, 602 (1990), this Court set out on a journey like Ms. Moreau’s. Our task in Taylor, like Ms. Moreau’s short trip to the train station, might not seem very difficult — determining when a conviction for burglary counts as a prior conviction for burglary under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)....

The insidious influence of international analogies in construing US law. Kennedy has infected even the conservative wing of the SCOTUS with a need to flaunt their familiarity with everything Continental. (There is a reason why the French tell Belgian jokes.)

The analogy is false. These things are never a matter of blind ignorance, but of interests.Sabine may have been astoundingly foolish in real life, but in the analogous world her lack of judgement is simply the result of concentrated special interests overriding the will of a majority with a more diffuse interest, the theme of public choice economics. In Sabines case, perhaps the interests that prefer that she consume a lot of gasoline unnecessarily.

"Along the way from Taylor to the present case, therehave been signs that the Court was off course and opportunitiesto alter its course. Now the Court has reached thelegal equivalent of Ms. Moreau’s Zagreb. But the Court,unlike Ms. Moreau, is determined to stay the course andcontinue on, traveling even further away from the intendeddestination. Who knows when, if ever, the Courtwill call home. "

I think it's a great analogy for a lot of how the law operates in the eyes of us laymen, and especially the regulations we live under. Although they start out with some semblance of reason, in practice they usually end up way off course or with exactly the opposite effect. I discuss regulatory issues with government inspectors and employees as part of my business, and it's amazing how often nobody can give a common sense justification for what we are doing or must do at risk of fines or jail. Often the only answer that can be given is: "I can't tell you why, but that's how they wrote the law, so this is what we have to do.", or "I just enforce what I'm told to." I'm really starting feel like a sucker, because I know a lot of businesses that do not follow the law or the rules, and they have an easier time of it. It's not in my nature to cheat, but when people's livelihoods are at stake, you can feel like you are letting them down by simply doing the right thing and following the law. Who deserves my consideration most: my employees and our families or some corrupt legislators and regulators taking care of theirs at our expense? This woman's foolishness my be humorous, but when the likes of her are running things, they do real damage to real people on a daily basis in enormous numbers.

Back to first principles. What doe's possession of a gun have to do with Congress power to regulate interstate commerce. Is this really a necessary and proper law to make effective Congress power to regulate the interestate sale or shipment of guns.

The Lady who ended up in Zagreb is an apt metaphor for the Court's constitutional jurisprudence.

Proof that in writing dissents you can be as self indulgent as you want because: a) you are not trying to convince your peers of anything; and b)you want to do something noticeable. Great dissents will be noticed and may someday lead to a change in the Court's jurisprudence. Terrible and mediocre dissents won't -- so dare to be great.

What's interesting about this case is that it could be overruled if either the Iowa legislature or Congress changed its statute. Moreover, any state that wanted to could render the Armed Career Criminal Act moot as to convictions in that state by adding an extra element to its burglary, arson, or extortion statutes.

Kagan pokes back at Alito in footnote 5:

"In another solo dissent, JUSTICE ALITO today switches gears, arguing not that our precedent is consistent with his means-based view, butinstead that all of our ACCA decisions are misguided because all followfrom an initial wrong turn in Taylor v. United States, 495 U. S. 575 (1990). ... To borrow the driving metaphor of his own dissent, JUSTICE ALITO thus locates himself entirely off the map of our caselaw. But that is not surprising; he has harshly criticized the categorical approach (and Apprendi too) for many years."

Why is the Armed Career Criminal Act even needed? Presumably most of the people who would be subject to this were out on parole when they committed the crimes(s) that triggered this Act. Why not simply sentence the criminal to serve the balance of previous convictions consecutively followed by the current sentence? Of course if violent criminals weren't released prior to completion of sentence this would be less of a problem.

The offenses enumerated are by no means the only violent crimes which trigger enhancements. it was only that particular phrase which was at issue in the case. Robbery, murder, rape, and more are all considered violent crimes which enhance.

Cubanbob -"most of the people who would be subject to this were out on parole..."Actually, not at all. For instance, it is not at all uncommon for 2nd degree murder offenders to serve sentences of single digit terms with no parole remaining on release. Burglary offenders may not get sent to prison until they have accumulated multiple convictions, and only then for terms of several years. This can vary wildly depending on state and even county, with urban areas being far more lenient and rural areas which do not experience as much crime, being more harsh. California, of course, is like another planet, as are a few of the more blue states, where almost everything is a non-criminal infraction similar to speeding.

Except, of course, for not believing in global warming, which will soon be a violent felony everywhere Democrats rule.